Any time you hear the United States government talking
about wiretap, it requires - a wiretap requires a court order.-George
W. Bush, April 20, 2004, Buffalo, New York.

In an assertion of executive power that
rivals the excesses of the McCarthy era of the late 1940's and 1950's, and the
dreaded COINTELPRO (counter-intelligence program) of the 1950's and 1960's,
George W. Bush's National Security Agency has been secretly spying on United
States citizens without warrants for the last three years.

George Orwell's book "1984" was
first published during the heyday of McCarthyism in 1949. In the society Orwell
described, everyone was under surveillance by the authorities. The people were
constantly reminded of this by the phrase, "Big Brother is watching
you."

During the McCarthy period, in an effort
to eradicate the perceived threat of communism, the government engaged in
widespread illegal surveillance to threaten and silence anyone who had an
unorthodox political viewpoint. Many people were jailed, blacklisted and lost
their jobs. Thousands of lives were shattered as the FBI engaged in
"red-baiting."

Although Orwell's allegory was aimed at
communism, it was the United States government that initiated COINTELPRO, designed by its own
terms to "disrupt, misdirect, discredit and otherwise neutralize"
political and activist groups. In the 1960s, for example, the FBI targeted Dr.
Martin Luther King, Jr. in a program called "Racial Matters." King's
campaign to register African-American voters in the South raised the hackles of
the FBI, which disingenuously claimed King's organization was being infiltrated
by communists. In fact, the FBI was really concerned that King's civil rights
campaign, and particularly his opposition to the Vietnam War, "represented
a clear threat to the established order of the US." The FBI went after King with a
vengeance, wiretapping his telephones and securing very personal information
which it used to try to drive him to divorce and suicide, and to discredit him.

In response to the excesses of COINTELPRO,
a congressional committee chaired by Senator Frank Church, a Democrat from
Idaho, conducted an investigation of activities of the domestic intelligence
agencies in the 1950's, 1960's and early 1970's. Congress established
guidelines to regulate FBI activity in foreign and domestic
intelligence-gathering. Reacting against President Richard Nixon's assertion of
unchecked presidential power, Congress enacted the Foreign Intelligence
Surveillance Act (FISA) in 1978, to regulate electronic surveillance, while at
the same time protecting national security.

FISA established a secret court to
consider applications by the government for wiretap orders. It specifically
created only one exception for the president to conduct electronic surveillance
without a warrant. For that exception to apply, the Attorney General must
certify under oath that the communications to be monitored will be exclusively
between foreign powers, and that there is no substantial likelihood that a United States person will be
overheard.

FISA allows the Attorney General to engage
in wiretapping in emergency situations without a prior judicial order provided
he or she applies for one within 72 hours after initiating the surveillance.
And FISA specifically covers warrantless wiretaps during wartime; it limits
them to the first 15 days after war is declared. Since 1978, the court has
granted about 19,000 warrants and only turned down five.

Nevertheless, in spite of FISA's
streamlined procedure for allowing lawful surveillance, Bush has sidelined the Foreign Intelligence
Surveillance Court. In 2002, he signed an executive order that authorizes the
National Security Agency to wiretap people within the United States with no judicial
review. It is estimated that the NSA has eavesdropped on thousands of private
conversations in the last three years. Additionally, the NSA has combed through
large volumes of telephone and Internet communications flowing into and out of
the United
States.
It has thus collected vast personal information that has nothing to do with
national security.

In the wake of the outcry after the New
York Times broke the story of Bush's secret surveillance, Attorney General
Alberto Gonzales cited Congress's authorization of the use of force the day
after the September 11 terrorist attacks as justification for the program. But
the 2001 Authorization for Use of Military Force (AUMF) only permits the
president to use "necessary and appropriate force" against
"nations, organizations, or persons" that "planned, authorized,
committed, or aided" the 9/11 attacks, or that "harbored such
persons."

That license to use appropriate force does
not authorize the government to spy on people in the United States without a warrant.
Indeed, several congresspersons who voted for the AUMF say they only intended
to grant the president authority to invade Afghanistan, not to conduct unbridled electronic
surveillance of people in the United States.

Tom Daschle, a former Democratic senator
from South
Dakota,
was Senate majority leader when Congress passed AUMF. He helped negotiate the
law with the White House counsel's office. "I can state categorically that
the subject of warrantless wiretaps of American citizens never came up," Dashcle
said. "I did not and never would have supported giving authority to the
president for such wiretaps. I am also confident that the 98 senators who voted
in favor of authorization of force against al Qaeda did not believe that they
were also voting for warrantless domestic surveillance."

In fact, Daschle revealed that Congress
turned down White House proposals both to authorize the use of military force
to "deter and pre-empt any future acts of terrorism or aggression against
the United
States,"
and to authorize the use of appropriate force "in the United States."

Senator Edward M. Kennedy, D-Mass.,
described Bush's spying program as an "arrogant usurpation of power."
He said, "The president is not above the law; he is not King George."
Senator Russ Feingold, D-Wis., agreed: "He is the president, not a
king," Feingold noted.

Senator Arlen Specter, R-Pa., Chairman of the
Senate Judiciary Committee, said such behavior by the executive branch
"can't be condoned." He declared on the Senate floor, "That's
wrong, clearly and categorically wrong. This will be a matter for oversight by
the Judiciary committee as soon as we can get to it in the new year - a very,
very high priority item."

The spying revelation also influenced the
Senate vote on the renewal of the USA Patriot Act. It swayed New York
Democratic Senator Charles Schumer's decision. "Today's revelation that
the government listened in on thousands of phone conversations without getting
a warrant is shocking and has greatly influenced my vote," Schumer said.
"Today's revelation makes it very clear that we have to be very careful -
very careful."

In a stunning blow against Bush, who had
hoped several provisions of the Patriot Act would be made permanent, Congress
extended the Patriot Act for only five weeks just before it recessed for the
holidays.

It is not just congresspersons who are
outraged at Bush's secret surveillance. US District Judge James Robertson, one
of 11 members of the FISA court, has resigned. Robertson, selected by former
Chief Justice William Rehnquist to serve on the FISA court, reportedly
expressed deep concern that Bush's program is legally questionable and may have
tainted the FISA court's work, according to the Washington Post.

Besides the NSA program, the American
Civil Liberties Union has discovered through a Freedom of Information request
that counter-terrorism agents at the FBI have conducted extensive surveillance
of such groups as the Vegan Community Project, the People for the Ethical
Treatment of Animals, and a Catholic Workers group the FBI accuses of having a
"semi-communist ideology." Red-baiting is once again alive and well
in America.

In 1975, Senator Frank Church said of the
NSA, "That capability at any time could be turned around on the American
people, and no American would have any privacy left, such is the capability to
monitor everything: telephone conversations, telegrams, it doesn't matter.
There would be no place to hide." Church worried about the capacity of
"this agency and all agencies that possess this technology" to
"make tyranny total in America."

George W. Bush has fulfilled the
prophesies of both George Orwell and Frank Church - with a vengeance. But
neither Orwell nor Church could have foreseen the technological developments
that enable Bush's large ears to penetrate our most intimate conversations.

The real motivation underlying Bush's
unprecedented assertion of executive power was revealed by Dick Cheney:
"Watergate and a lot of the things around Watergate and Vietnam, both
during the 1970's, served, I think, to erode the authority I think the
president needs to be effective, especially in the national security area. The
President of the United States needs to have his constitutional powers unimpaired."

Bush has gone far beyond what the
Constitution authorizes, however. Only Congress has the power to make laws.
Congress has not authorized the president to suspend the law. And FISA makes it
a crime, punishable by up to five years in jail, for the executive to conduct a
wiretap without statutory authorization.

Marjorie Cohn is a professor at
Thomas Jefferson School of Law, President-elect of the National Lawyers Guild,
and the US representative to the executive committee of the American
Association of Jurists. She writes a weekly column for t r u t h o u t.